Carmichael v. General Elec. Co.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before LAZER
• Citation: Carmichael v. General Elec. Co., 476 N.Y.S.2d 606, 102 A.D.2d 838 (N.Y. App. Div. 1984)
• Decision Date: 11 June 1984
• Parties: , 39 UCC Rep.Serv. 539 George CARMICHAEL, et al., Respondents, v. GENERAL ELECTRIC COMPANY, et al., Appellants, et al., Defendant. (and Three other titles)

Page 606

476 N.Y.S.2d 606

102 A.D.2d 838, 39 UCC Rep.Serv. 539

George CARMICHAEL, et al., Respondents, v. GENERAL ELECTRIC COMPANY, et al., Appellants, et al Defendant. (and Three other titles)

Supreme Court, Appellate Division Second Department.

June 11, 1984.

Lester, Schwab, Katz & Dwyer, New York City and James P. McMahon, Brooklyn (Steven B. Prystowsky and B. Jennifer Jaffee, New York City, of counsel), for appellants General Elec. Co. and New York City Transit Authority (one brief filed).

Eugene H. Lieber, New York City, for appellant EBS Inc. (relying on the brief of General Elec. Co. and New York City Transit Authority).

Fetell & Coen, P.C., Brooklyn, for appellant Jandous Elec. Const. Corp. (relying on the brief of General Elec. Co. and New York City Transit Authority).

Albanese, Albanese & Fiore, Garden City (Vincent M. Albanese and Charles R. Strugatz, Garden City, of counsel), for respondents.

Before LAZER, J.P., and THOMPSON, WEINSTEIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., defendants General Electric Company, ESB Incorporated, and New York City Transit Authority and third-party defendant Jandous Electric Construction Corp. appeal from an order of the Supreme Court, Kings County, dated March 11, 1983, which, inter alia, granted plaintiffs' motion for leave to renew a prior motion, and, upon renewal, restored the action to the calendar and compelled defendants to complete discovery. (The City of New York has withdrawn its appeal from the order.)

Appeal by Jandous Electric Construction Corporation dismissed, without costs or disbursements.

On the appeals by General Electric, ESB Incorporated and New York City Transit Authority, order affirmed, without costs or disbursements.

Plaintiffs' action was dismissed pursuant to 22 NYCRR 752.2(c) when they failed to appear at the calendar call on June 21, 1982. Plaintiffs' counsel concedes that "calendar watching service did not advise us that the action was scheduled to appear", although he had tried unsuccessfully to keep abreast of the movement of the court calendar through telephone calls to the court clerk. When counsel again called the clerk's office on August 23, 1982, he was informed of the dismissal.

By notice of motion dated September 22, 1982, plaintiffs moved to restore the action to the trial calendar. The motion was denied without prejudice to renew on proper papers. Upon renewal, the relief sought was granted on condition that plaintiffs pay costs.

Plaintiffs tendered checks representing payment of costs to defendants on or about April 8, 1983. Defendant General Electric (GE) received a check, retained it for approximately seven months, and then returned it, uncashed, to plaintiffs. Counsel for defendant ESB Incorporated (ESB) has affirmed that "I have searched my file and find no check or draft representing the payment of costs by counsel on behalf of the plaintiffs herein". Counsel for third-party defendant Jandous Electric Construction Corp. (Jandous) affirmed in opposition to a motion by plaintiffs to dismiss the appeals (which this court denied with leave to renew upon the argument or submission of the appeals) that the check payable to it was placed in an escrow account, although the check was endorsed by Jandous without restriction. Plaintiffs now argue that these defendants have waived their right to appeal. We hold that only the appeal of Jandous should be dismissed.

The general rule is that a party who accepts the benefits of an order waives the right to appeal from that order (see Cohen v. Cohen, 3 N.Y.2d 339, 165 N.Y.S.2d 452, 144 N.E.2d 355; Metropolitan Trust Co. v. Long Acre Elec. Light and Power Co., 223 N.Y. 69, 119 N.E. 233), since one may not secure the fruits of an order and at the same time seek a review of it (Matter of Silverman 305 N.Y. 13, 110 N.E.2d 402; Goepel v. Kurtz Action Co., 216 N.Y. 343, 110 N.E. 769; Bennett v. Van Syckel, 18 N.Y. 481). When costs are imposed as a condition for granting relief, "acceptance" of the costs will be held to waive the right of appeal (see Gohery v. Spartan Concrete Corp., 85 A.D.2d 678, 445 N.Y.S.2d 512, affd. 56 N.Y.2d 785, 452 N.Y.S.2d 400, 437 N.E.2d 1157; Mosera v. City of New York, 93 A.D.2d 833, 461 N.Y.S.2d 51; N & J Foods v Shopwell Plaza Corp., 63 A.D.2d 899, 405 N.Y.S.2d 716; see, also, 4 N.Y.Jur.2d, Appellate Review, § 110).

Mere retention of a check, without depositing it for collection, does not bar an appeal, however (see Swanson v. Alter, 5 Misc.2d 523, 158 N.Y.S.2d 827). The benefits of the order were never "accepted" by the defendants, since their checks (assuming ESB received a check) were not cashed (see American Tel. & Tel. Co. of Wyo. v. Walker, 77 N.M. 755, 427 P.2d 267; Wheeler & Motter Mercantile Co. v. Kitchen, 67 Okla. 131, 169 P.2d 877).

Delivery of an uncertified check constitutes only conditional payment, dependent upon the check being honored when presented (see Uniform Commercial Code, § 3-802, subd. par. Mansion Carpets, Inc. v. Marinoff, 24 A.D.2d 947, 265 N.Y.S.2d 298). Before presentment, the check vests no title or interest in the payee in the funds on deposit with the bank (see Attorney-General of the State of New York v. Continental Life Ins. Co., 71 N.Y. 325; Standard Factors Corp. v. Manufacturers Trust Co., 182 Misc. 701, 50 N.Y.S.2d 10, affd. 269 App.Div. 658, 53 N.Y.S.2d 461) and is "revocable by the drawer, who has legal control of the moneys to his credit until * * * payment" (Aetna Nat. Bank v. Fourth Nat. Bank, 46 N.Y. 82, 88; see, also, Uniform Commercial Code, § 3-409). Thus, as GE and ESB have failed to cash the checks, plaintiffs have not demonstrated a course of conduct which is clearly and unequivocally inconsistent with the taking of an appeal (see Cady v. Bradshaw, 116 N.Y. 188, 22 N.E. 371; Goldstein v. Brastone Corp., 254 App.Div. 288, 4 N.Y.S.2d 909, affd. 279 N.Y. 775, 18 N.E.2d 862; Cicero Ind. Dev. Corp. v. Robert, 63 Misc.2d 565, 312 N.Y.S.2d 893).

A different conclusion is mandated for the appeal by Jandous. It cashed the check and failed to notify plaintiffs that the money was being held in escrow until after plaintiffs made a motion in this court to dismiss these appeals. It is axiomatic that in order to have a valid escrow agreement under New York law there must be an agreement between the parties as to the subject matter (see Jackson ex dem. Gratz v. Catlin, 2 Johns. 248, affd. 8 Johns. 520; Press v. Marvalan Inds., 422 F.Supp. 346; Menkis v....